Ninth Circuit Clarifies Malingering & Reopening Requests
Every so often, the Ninth Circuit drops a decision that brings home the realities of Social Security disability litigation—Phillips v. Bisignano is one of those.
Key Takeaways: What You Need to Know
Phillips asked the ALJ to reopen a prior application. But without a solid due process argument or “good cause” under § 404.911(b), the Ninth Circuit rejected the request.
The ALJ discounted multiple medical opinions (from Eastman, Wingate, Jaura, Fernandez, Marshall) because they:
lay outside the relevant period,
conflicted with the claimant’s reported Activities of Daily Living (ADLs),
lacked objective support,
and in some cases showed signs of malingering.
Based on those grounds, the court found the ALJ had provided “specific, cogent reasons” — which met the legal standard.
Where the Case Gets Interesting
Reopening & Due Process
Phillips tried to lean on due process concerns, but the Ninth Circuit made clear: reopening requires more than a vague claim. Without demonstrating “good cause” under the statute, a request to reopen will likely fail.
Malingering Changes the Standard
Phillips invoked Brown-Hunter, hoping for more rigorous review of symptom testimony. But that case’s standard (“clear and convincing” reasons) only applies when the ALJ does not find malingering.
Here, the ALJ concluded Phillips was malingering — citing:
the Rey 15-Item Test,
Beck Depression Inventory (BDI) exaggeration markers,
inconsistent statements about hallucinations, cane use, and daily activities.
Once malingering is part of the analysis, the ALJ doesn’t need “clear and convincing” reasons — “specific reasons” suffice.
Lay Witness (Non-Medical) Evidence
Mr. Price’s (a lay witness) observations were discounted because they clashed with:
generally normal clinical exams,
minimal treatment,
objective evidence of improvement.
Under Lewis, that is enough: if lay testimony is inconsistent with the medical record, the ALJ may reject it.
Residual Functional Capacity (RFC) & ADLs
Phillips’s reported ADLs carried a lot of weight. Independent self-care, cooking, attending classes, going to the gym, using public transportation, and maintaining social activities all supported a finding of routine, predictable work with limited public contact.
In other words: daily functioning tends to be persuasive when assessing RFC.
Practitioner-Friendly Takeaways
Reopening Is Harder Than It LooksDon’t rely on general due process claims. You need a clearly articulated argument and to satisfy § 404.911(b) if you want the ALJ to reopen a prior application.
Supportability & Consistency Are Non-NegotiableThe Ninth Circuit continues to lean on the post-2017 framework: evaluating whether opinion evidence is supported by objective findings and consistent with the rest of the record.
Malingering Lowers the BarIf the ALJ credibly finds malingering, they only need “specific reasons” to discredit symptom testimony. That’s a big shift from the more demanding “clear and convincing” standard.
ADLs Remain PowerfulEvidence of independent daily living — from self-care to transportation—often underpins favorable RFC findings, especially for moderate work.
Consistency Is EverythingWhether evaluating medical opinions, lay testimony, or symptom reports, inconsistency with the record is frequently fatal.
Why This Case Matters
Phillips v. Bisignano may not rewrite disability law—but it’s a sharp reminder of what the Ninth Circuit expects from ALJ decisions (and from practitioners). This is especially true when malingering is alleged, when reopening is at issue, or when daily living activities are central to the RFC analysis.
Q: How does a finding of malingering affect the ALJ’s evaluation of testimony?
A: When malingering is found, the ALJ doesn’t need to provide “clear and convincing” reasons to discount testimony; “specific reasons” will do.
Q: Why are Activities of Daily Living (ADLs) so powerful in RFC assessments? A: ADLs provide real-world evidence of functioning. If a claimant can manage self-care, cook, travel, socialize, or maintain other routines, it supports the possibility of regular work.
Got any questions? Schedule a consultation with us. I’m here to help. It’s a lot to take in, but we’ll get through it together. After all, navigating these waters is always easier when you’ve got someone to chat with.
